State Reporting Bureau
Transcript of Proceedings
Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.
Issued subject to correction upon revision.
COURT OF APPEAL
McPHERSON JA
WILLIAMS JA
AMBROSE J
CA No 163 of 2001
MARK SHIELDS
V.
MARTIN ESSENBERG Applicant
BRISBANE DATE 31/01/2002 DAY 1
4~ Floor, The Law Courts, George Str..t, BrIsbane, 0.4000
1
TeI.phone: (07) 32474360 Fax: (07)3247 5532
31012002 D.l T5/EM9 M/T C0A146/2002 1APPLICANT conducted his own case
MR M COPLEY (instructed by the Director of Public Prosecutions (Queensland)) for the respondent
McPHERSON JA: Yes. Are you - are you Lawrence or Martin? 10
APPLICANT: Martin.
McPHERSON JA: Martin Essenberg. Are you Martin Essenberg?
APPLICANT: Yes, your Honour.
McPHERSON JA: And you're going to appear in person in this appeal against your conviction under the Weapons Act, is it?
APPLICANT: Yes, your Honour.
McPHERSON JA: All right. Well, what are your primary points, Mr Essenberg? Are we going back into Magna Carta and the suggestion that the State Weapons Act cannot authorise a summary trial and also to this argument which we seem to get with great frequency that somehow the State government wasn't properly appointed or properly empowered to assent to the Act. Are we on that again?
APPLICANT: Your Honour, I seek leave of the Court to file an affidavit in support of my application, which affidavit evidence is the fact that Major General Peter Arnison was never appointed to the office of Queensland State Governor by order of Her Majesty in Council.
McPHERSON JA: Well, I think we've dealt with this either in this Court or by individual Judges on at least four or five occasions. And unless you've got something better to say than that, we are bound by our previous decision. And we don't really want to hear the whole point again because we -we can't depart from what we've said.
In case, however, you have some slight new variation on this proposition, we will receive the affidavit simply to find out whether or not we are confronted by this old argument which has been passed upon by the Court in an adverse sense on many occasions.
WILLIAMS JA: Have you given a copy to Mr Copley?
McPHERSON JA: You're asking for now for a writ of quo warranto, are you? You're not going to get that from this Court. You have to make a proper application and serve the other side and so on before you do that. But it probably doesn't matter because it's the substance of the argument rather than the form of the application that - that controls the question, purported commission.
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D.1 T5/EM9 M/T C0A146/2002AMBROSE J: Mr Essenberg, do you have any information as to when the High Court is likely to entertain this application for special leave on the Sharples matter?
APPLICANT: No, your Honour.
McPHERSON JA: What do you say about this, Mr Copley? There may be some parts of it that you regard as inadmissible, if there are perhaps you could tell us.
MR COPLEY: Well, as I - under the prosecution - respondent understands it, it seems that the grounds of appeal have now changed to be a suggestion that - that the Weapon's Act is invalid because the Governor's not - hasn't taken an oath of allegiance und~r the Commonwealth Constitution.
But the respondent submits that leave should not be granted to change the grounds of appeal. The grounds of appeal were identified in his notice of appeal months ago, and he submitted a very lengthy document about that which the respondent has responded to, and that's what we should restrict ourselves to today.
McPHERSON JA: I'm inclined to think that I agree with you, and I'm not speaking for the others, but at the sametime, having regard to the way things go when there are litigants in person, I thinkI'd prefer to let him putthe proposition, and then we'll rule on whether it's correct or not, either as a proposition that goes to the application to amend the grounds of appeal, or as a proposition that even if it's allowed, it will be wrong.
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MR COPLEY: Yes, your Honour.
McPHERSON JA: Or it may be determined to be wrong, I should say.
MR COPLEY: Yes.
McPHERSON JA: The complaint seems to be that he should have taken the oath before Her Majesty the Queen in person. Is that part of it. That seemed to me to be part of the story that was being told in the document which I think was Exhibit - I must have got the idea from the first exhibit.
Yes1 wasn't the - the oath taken before Mr Justice
Macrossan. I t~ought, perhaps, that was the complaint.
We'll have to find out. That'~ the trouble it's all a
little unclear as to what's been said and on what material.
So, I think, that's the way I'd prefer to deal with it. What do you think?
MR COPLEY: I'd agree with that.
McPHERSON JA: All right, we'll let you read this affidavit and - in so far as it's necessary your grounds of appeal and outlines will be treated as extending to the matter it raises. Frankly, I think, most> of it's covered, if not all of it, by the previous decisions we've given.
MR COPLEY: I have a copy whether it's of any assistance I don't know. I don't want to complicate it, but subsequent to my doing those two outlines the Court of Appeal handed down a judgment in a matter called Sharples v Arnison.
WILLIAMS JA:
that Mr Copley.
Yes, I think we've all picked up a copy 6f
MR COPLEY: Because I do have copies in case your Honours didn't have them.
4C
McPHERSON JA:
judgment, is it.
MR COPLEY: Yes.
Is that the one I - well, I wrote the basic
McPHERSON JA: Yes. I've got a copy of that.
WILLIAMS JA: Yes, I have to, so I think we've all got
McPHERSON JA: It's probably not necessary to give
MR COPLEY: Well, I might just hand one over to the applicant.
McPHERSON JA: Good. I have the impression he knows about the case
APPLICANT: Yes, I've read
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31012002 D.l T6/TW12 M/T C0A146/2002 '1
McPHERSON JA: because Mr Sharples has inevitably gone somewhere else with the matter.
WILLIAMS JA: Perhaps, Mr Essenberg, if you
90 to paragraph 6 of your affidavit that we've just given you leave to trial, you say, "He clearly failed us where oath to Her Majesty pursuant to clause 3 of the Commonwealth of Australia Constitution Act." What do you mean by that, can you expand on that?APPLICANT: Your Honour, I am unrepresented McPHERSON JA: That we know.
APPLICANT: -----not legally very knowledgeable. This information has been proVided to me and I cannot further expand on it.
AMBROSE J: Well, this is your affidavit, who gave you that information?
APPLICANT: I'm not at liberty to sort of disclose that your Honour.
AMBROSE J: Somebody told you, but you're not going to say who it was or
APPLICANT: Well, it came to me, yes.
McPHERSON JA: Well, unless he's a professional qualified legal adviser, no professional privilege attaches to that statement. We've already ruled to that effect in another case too.
There is no reason why you should not give this information and if you tell us that somebody's informing you of these things and you don't understand enough about them to explain them then we'll be - we will be bound to place very little reliance on any submissions in relation to it.
But tell me this, do you think - did your infqrmant give you the idea that Major General Arnison had to swear his oath to Her Majesty in person rather than to someone else?
APPLICANT: I believe that the procedures is that - is not that - is that there's various procedures to create a Govenor or Govenor-General, and these were not followed through
McPHERSON JA: But this is not a Govenor-General.
APPLICANT: Or Govenor-General, one or the two.
McPHERSON JA: Well, we'll have to stick one rather than the other.
APPLICANT: Well, it's - there's doubts about them both, and
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31012002 D.l T6/TW12 M/T COAI46/2002 I
McPHERSON JA: I've been an acting Govenor and I certainly didn't swear my oath to Her Majesty and it's never been done that way.
APPLICANT: I'm sorry, your Honour, I have been denied legal aid and I have not got the personal knowledge of these things.
AMBROSE J: Well, are you admitting that the matters contained in your affidavit are matters that you have no knowledge of yourself, they've been informed by somebody who's name you've decline to disclose to us.
APPLICANT: My appeal - my entire appeal documents are put together by other people.
AMBROSE J: Will you answer my question, please?
APPLICANT: I have no - no direct knowledge of these things, your Honour.
McPHERSON JA: Well, let me tell you what clause 3 of the Commonwealth of Australia Constitution Act says. Now, to explain what I'm about to say it's necessary to add that the Commonwealth Constitution is, in fact, a schedule toan Act of the United Kingdom Parliament, which is the one that's mentioned in your paragraph 6. That is to say 63 and 64 Victoria Chap. 12, Chapter 12.
If you go to the Act, the section which I take to mean what is being referred to by clause 3 mentioned in paragraph 6 says:
"Proclamation of Commonwealth. It should be lawful for the Queen with the advice of the Privy Council to declare by proclamation that on and after a day therein appointed, the people of New South Wales, Victoria, South Australia and Queensland and Tasmania shall be united in a Federal Commonwealth under the name, The Commonwealth of Australia, but the Queen may at any time after the proclamation appoint a GQvenor-General for the Commonwealth."
Now, that has nothing whatsoever to do with the State Government, and if that's the provision being referred to it's irrelevant, and if you go then to paragraph - to section, rather, 3 of the Constitution as such as distinct from the Act, section 3 of that Constitution says, under the heading:
"Salary of Govenor-General. There should be payable to the Queen out of the Consolidated Revenue Fund of the Commonwealth, for the salary of the Govenor-General and annual sum which, until the Parliament otherwise provides, shall be $10,000. The salary of a Govenor-General shall not be altered during his continuous in office."
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D.1 T6/TW12 M/T COAl46/2002That quite plainly has nothing to do with State Govenor's taking oaths.
APPLICANT: Your Honour1 I understood this to be correct information, that I put it in an affidavit, anyone can make mistakes, as for instance did the affidavit that the - the respondents put in about the details of my case.
McPHERSON JA: We don't mind mistakes, all we want to be able to do is to say, possibly with your consent, but not necessarily, that there is a mistake and therefore we can ignore it.
APPLICANT: Your Worship, I have no knowledge there may be a mistake.
McPHERSON JA: All right, well, I'm prepared to say that there is a mistake and what's said in paragraph 6 is nonsense, has no legal consequences at all that Major General Peter Arnison failed, if this is the allegation, to take his oath to Her Majesty in person, and that it's no way associated with either clause 3 of the covering clauses, or section 3 of the Constitution. Not affected by those provisions.
Now, what else have we got here. A purportive commission from Her Majesty. What's said to be wrong with the purportive commission. If you look at the document that is exhibited there, it says:
"Her Majesty's been - whereas Her Majesty's been graciously pleased to appoint me, Peter Morris Arnison to be Govenor in and over the State of Queensland and its dependencies, now therefore, I the Govenor, dd hereby notify, proclaim and make known that I have this day taken the prescribed oaths before the Honourable John Murtagh Macrossan, the Chief Justice of the Supreme Court of this State."
What's wrong with that?
WILLIAMS JA: I suppose the commission's really the next part of the document. It starts on the second page, copy of commission, that may be what
McPHERSON JA: They're getting.
WILLIAMS JA: getting at, which is from Her Majesty's. It's by HerMajesty's command then, of course, signed as is appropriate by the then Premier.
AMBROSE J: What do you say is wrong with it. is it ineffective?
APPLICANT: So
I mean, why
AMBROSE J: But your - it's exhibited to your affidavit to show that there's some inability, I expect, of the
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D.l T7/CAL18 MIT C0A146/2002 1legislature to properly pass legislation and have it assented to because of some deficiency in the appointment of the Governor. Well, what deficiency emerges, what deficiency do you say is demonstrated in this copy of the commission?
APPLICANT: I think in MP3 of the - the - the
McPHERSON JA: In what did you say; M?
APPLICANT: MP2.
McPHERSON JA: That's
APPLICANT: I think this is the essential thing. The first one is simply showing that - what the commission is.
McPHERSON JA: Mmm. 20
APPLICANT: And the second one says:
"An order in Council was not issued in relation to the appointment of Major General Peter Arnison, AO, as Her Majesty's Governor in Queensland. The Privy Council deals with the matters related to the United Kingdom, the Channel Islands and the Isle of Man and overseas territories but not Her Majesty's otherrealms.
The Judicial committee hears appeals from countries such as New Zealand, which don't have their own final appeal Court but these do not include Australia."
I believe that the intent is to say that the Governor-
General - sorry, the Governor, rather - Major General Peter
Arnison has not been authorised, despite what it says in -
in the first place.
30
WILLIAMS JA: Well, that must get back to a challenge to the 40 Royal Sign Manual. Is that right?
APPLICANT: Well, as I understand it the Royal Sign Manual has not been used to authorise Governor - General Arnison.
WILLIAMS JA: Well, if you have a look at the - at the second page of - of MPl it's got:
"The following commission passed under the Royal Seal Manual and the Public Seal of the State of Queensland -appoin~ing Peter Maurice Arnison, AO, to be Governor of the State of Queensland and its dependencies in the Commonwealth of Australia is published for general information."
Then it sets out a copy of the commission and I would have thought that if you were challenging that procedure you'd have to be challenging the capacity to make an appointment pursuant to the Royal Sign Manual, and I thought that was a point that had been dealt with in Sharples case.
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APPLICANT: Well, that's in the High Court.
McPHERSON JA: Well, that doesn't matter. We have to decide cases and if we do it wrongly and the High Court later gives a decision that shows they're wrong, well, you take our decision on to the High Court and say, "Look, it's obvious they got it wrong." But if we were to stop and wait in cases for decisions of the High Court in all pending matters, the work of the Court would never be done. But to return to the point that's been made by Justice Williams, there is no rule that a Governor's appointment has to be by order in Council.
In fact, in the old days - and I'm going back to the last 400 years - it was usually done by what were called letters patents or, if you like, a charter or, if you like, a commission under the great seal of the realm of England. But the - the Monarch could do it under hand or by using one of the lesser seals of the realm. Didn't have to be an order in Council. It was just an appointment by the King or Queen of a particular person to be a Governor. It could even be done simply in a letter because all that was needed was that the will of the Monarch be expressed in a way which left no doubt about it.
It was done in a more formal way. That is by commission under seal because it was an important position. But it could have been done in any other way which expressed the Monarch's wish because it was the King or Queen exercising her prerogative to do something which was within her Governmental power.
Now, all that's happened since those times is that a procedure's been enacted in the Queensland Act providing that the Sign Manual will be sufficient for that purpose and your colleagues in all this - when I say your colleagues the other people who keep on raising these arguments - are alleging that it was invalid, for reasons that were dealt with and disposed in the last case by - what was his name?
WILLIAMS JA: Sharples.
McPHERSON JA: Sharples. Now, we're not going to run over that ground again. We've got better things to do than to keep on dealing with the same point four or five times in a year or two. We just leave it to the next Court to deal with. All right. Now, what else do you want to say about all this? I thought you were making some complaint that you'd been convicted summarily when you were entitled to trial by jury under the Magna Carta.
APPLICANT: Your Honour had three major things. One is the Constitutional arguments. I've, from the beginning, said it under section 78B, the entire case should have been removed to the High Court.
McPHERSON JA: Tell me why.
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APPLICANT: Well, because my arguments involve section 51, 51.38, 106 and 128 of the Federal Constitution, in addition to 53 of the State Constitution to do with referenda.
McPHERSON JA: Give me those numbers again. Section 51. APPLICANT: 51, 51.38,
McPHERSON JA: Well, just let me stop and have a look at that. 51.38. Yes. So this is the one that's dealt with in Su v Hill. "The exercise within the Commonwealth at the request or with the concurrence of the Parliaments of all the States directly concerned of any power which can, at the establishment of this Constitution, be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia," which, of course, has long since disappeared.
20
Your argument is that the Commonwealth didn't have power -
Commonwealth Parliament didn't have power to authorise the
State Parliament to make the changes it did in one of the
Acts, either the Australia Request Act 1986 or the Act, I
think of 1970, that followed dealing with the Office of
Government.
APPLICANT: Yes, your Honour.
McPHERSON JA: Is that your argument?
APPLICANT: Partly, your Honour.
McPHERSON JA: Yes, well, that's been dealt with (a) in our previous judgment in the last Sharples' case and (b) so far as concerns of the validity of the exercise of the Commonwealth power to do what was done in these Constitutional cases, it's directly covered by the decisibn of the High Court in Su v Hill. We can't go against that and while that decision stands I would prefer this question or - or postpone or defer the decision of this question, pending that other decision in the Sharples case, simply because we have a decision of a full High Court in Su v Hill that makes the point quite clear. So that's hot enough to get you home.
APPLICANT: Mmm.
McPHERSON JA: What else have you got?
APPLICANT: Well, the other two issues were the right to trial by jury and, of course, the behaviour of the Judge at the District Court. I have a - supplementary arguments. Could I
AMBROSE J: Before you go to that argument, I'm just not terribly clear on - on point - paragraph 3 of your affidavit. Are you saying that the validity of the appointment of the Governor required publication of an order in Council in England? Is that the point?
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APPLICANT: I believe so, your Honour.
AMBROSE J: It1s not enough that it be published by order in Council published in Queensland, it must also be published in - in England. Is that - is that - I mean, that seems to be, just looking at MP2, seem - is that correct; is that your argument?
APPLICANT: I believe it's required that the Privy Council support the - the position of Governor. Yes.
AMBROSE J: When you say you believe it, what's the - what's the basis for that belief?
APPLICANT: Your Honour, unfortunately I'm not really skilled in this type of thing.
10
AMBROSE J: No, I'm not asking 20
APPLICANT: I'm presenting
AMBROSE J: I'm not criticising you for any lack of skill. I'm asking you why - why do you say that? Why do you assert that the valid appointment of a Governor of Queensland duly published in the Queensland Government Gazette, as -as emerges from the material, is insufficient; that there must also be an order in Council published by the Privy Council? I mean, I just - what - is there any authority for that proposition?
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APPLICANT: I have no real knowledge of these things, your Honour.
AMBROSE J: Well, you don't cite any statutory provision or anything from England or any - you offer no authority to support that proposition.
APPLICANT: No, your Honour.
AMBROSE J: Very well, thank you.
WILLIAMS JA: What's the conduct of the District Court Judge that you are relying on, Mr Van Essenberg?
APPLICANT: Your Honour, could I just hand up my supplementary submission?
WILLIAMS JA: Yes.
APPLICANT: Your Honour, the supplementary submission has more detail why I believe the Australia Act to be unlawful and also more information about the Governor.
McPHERSON JA: Just a minute. Are these things coming from somebody else and when we ask you about what's meant in paragraph 23, for example, you: will say, "I don't know." Is that what's happening? You'rejust gettinQtbis information from someone else who has the same ideas as you have and the same arguments and putting them to us in writing in this fashion? Are you doing that? He's an advocate, not a qualified one; he's not in Court; we can't ask him; we can't ask you because you don't understand what it's about. Is that what you're doing?
APPLICANT: Your Honour, I mentioned to Judge Robertson in District Court that in Dietrich they said that a person should have, in a serious case, legal representation. Legal Aid has been denied to me so I've had to do what I can to be able to represent myself in Court.
AMBROSE J: You admitted all the relevant facts in Court. There was never any issue
APPLICANT: The fact
AMBROSE J: as to the acts that you committed and that they constituted an offence if the legislation was valid.
APPLICANT: The fact that I had a piece of wood which is a stock of a rifle is not in doubt. I admit that. I believe the Weapons Act to be invalid for a variety of reasons which I cover in my outlines of argument.
AMBROSE J: Well, that was - you say you were entitled under Dietrich to get
APPLICANT: Legal representation.
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AMBROSE J: Legal Aid or have somebody appointed to argue these Constitutional matters going to the validity of the Weapons Act.
APPLICANT: Yes. If
WILLIAMS JA: And that's the conduct of the District Court Judge that you referred to a few minutes ago?
APPLICANT: That was - I brought that argument to the District Court Judge, yes.
WILLIAMS JA: But you said you had three points. the Weapons Act was invalid
One was
10
APPLICANT: Yes.
20
WILLIAMS JA: because of the argument about the
Governor; secondly, your right to trial by Jury
APPLICANT: Yes.
WILLIAMS JA: and the third thing you said was the conduct of the District Court Judge.
APPLICANT: Yes.
WILLIAMS JA: Now, when you said that, you were referring to his failure to give an adjournment or direction which would result in you having some Legal Aid to argue the first two points.
APPLICANT: Your Honour asked me about the fact that I'm presenting someone else's documents
McPHERSON JA: I did, yes.
APPLICANT: Because I haven't got the money and because I haven'tgot Legal Aid, I have to do this myself. I have no choice - touse other people who are not necessarily legally qualified to help me put things together to present to you. There is no other choice.
McPHERSON JA: Well, that may be so but it's no good your handing this up to us; our reading it; and then saying to you, "What do you mean in paragraph 7?" You'll just say to us, as you've already said, "I don't know. I'm not legally qualified so I have to get other people to do it who aren't here to tell you what it means."
Now, I'm not personally prepared to accept submissions like this. Otherwise, we will be arguing with people possibly all over the world who we can never see and never question about the meaning of their submissions. Your time for putting in submissions has long since gone and I wouldn't accept that further one whatever my colleagues may do.
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You tell us, standing there as you are, with the privilege which is not enjoyed in Europe of a litigant in person under the common law system of presenting his own case if he doesn't choose or can't afford to employ a professional advocate. You tell us what your case is about.
Now, Justice Williams has put to you that you've said that there were three grounds: the Magna Carta ground, the invalid appointment of the Governor and consequent invalidity of the Weapons Act; and also now this complaint against Judge Robertson, namely, that he did not ensure that you were legally aided in the manner indicated by the case in the High Court.
You
This isn't a big case. This is not a serious case.
were fined $400, weren't you?
APPLICANT: I was fined $400. The issue is not the money.
The issue is I believe the Weapons Act to be an invalid law.
The Parliament does not have the power to pass.
McPHERSON JA: Well, that wouldn't take it within the Dietrich Act.
APPLICANT: Well, it may not be serious in the sense I'm not up for 10 years.
McPHERSON JA: Dietrich decision.
APPLICANT: But it is a complex case which I am not capable of running correctly.
McPHERSON JA: Well, I tell you it's not a complex case and even - and whether it is or not, you are not capable of handling it because you don't know the meaning of the submissions you're putting up.
APPLICANT: That is correct.
WILLIAMS JA: See, this is only an application for leave to appeal. I mean, it's - I think it's up to you to show that there is some ground, some basis, on which we should enable you to or give you the right to raise these particular points.
APPLICANT: Well, if we go to the issue of the District Court, the District Court has rules of procedure, practice directions. Can I pass you copies of this?
McPHERSON JA: Yes, those are statutory or AMBROSE J: Which one is it? The
APPLICANT: District Court Practice Direction Number 4 of '97.
AMBROSE J: Was that the one in force at the time of this argument?
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APPLICANT: In force at the time I was in the District Court. Now1 in it it says
AMBROSE J: Now, it's rule 4, is it?
APPLICANT: Rule 4, yes.
AMBROSE J: Yes, all right.
1
APPLICANT: In it it says that I have 21 days after notification. It also says that the prosecution, the DPP, must do certain things in certain times.
AMBROSE J: I'm sorry, I can't find that in this document that you've handed up to me. Rule 4 seems an outline of argument. It's a definition section, rule 4.
WILLIAMS JA: The outline of argument one, that's clause 9, I think. "Within 28 days of filing a notice of appeal, the appellant shall file and serve an outline of argument."
MR COPLEY: I think he's concerned about or trying to direct your Honours to clauses 10 and 13A.
AMBROSE J: 10 and 13.
MR COPLEY: 10 requires the respondent to file its reply within 28 days.
AMBROSE J: Yes.
MR COPLEY: And then 13A requires the Registrar to give the parties, according to this document at least 21 days notice whenthe appeal is going to be heard.
AMBROSE J: Yes.
MR COPLEY: His complaint down below was that the Crown -
I'll just use that expression - didn't put it in in time.
It didn't put it in within 28 days; it put it in much but of
time.
AMBROSE J: It was eight days or something, wasn't it?
MR COPLEY: That's a different point.
AMBROSE J: Oh, that's a different point.
MR COPLEY: That's a different point. The Crown put its argument in well out of time and his Honour, Judge Robertson said to the applicant, "Yes, that's so and there's no excuses for it and it's not good enough but, nevertheless, they've responded with a very short outline to your very lengthy outline and here we are to argue the matter now."
And the next complaint was that he didn't get 21 days notice from the Registrar that the matter was on for hearing that particular day. He said he'd only got eight days' notice.
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APPLICANT: The day after the I received the - both the respondent's outline and the notification I was due in Court in eight days, I put a application into the District Court under section 16 of the practice direction that, "Any party may apply to a Judge in Chambers for a special direction or such other order as may be necessary to facilitate the proper hearing and determination of the appeal."
McPHERSON JA: Well, you say that you were deprived of something. What were you deprived of? The opportunity of making these arguments more clearly? You have it now. Make them clear now. That's all you need. You're deprived of nothing here.
APPLICANT: I was deprived in the District Court
McPHERSON JA: It doesn't matter. You
APPLICANT: of adequate time to prepare.
McPHERSON JA: Well, you've got - you've had adequate time since then to put forward any arguments that you have that are worthy of consideration. How long is it since Judge Robertson heard this matter?
APPLICANT: Back in May.
McPHERSON JA: Well, we are now almost to the next May so you've had a year in which you can put any arguments you want to put and you can put them to us. And when you do and we ask you about them, you say you don't understand them.
APPLICANT: Your Honour, the practice direction states I should have 21 days.
McPHERSON JA: It doesn't matter. The Judge can waive or ignore the practice direction if he thinks the matter can be dealt with without complying with it.
APPLICANT: What is the point of practice directions if the only person it applies to is the appellant and the Court doesn't obey them and nor does the DPP obey them?
McPHERSON JA: They are guidelines which the profession is expected to follow. They are not statutes. They are guidelines and if they aren't followed, you can expect the Judges will, first of all, get angry about it which is not something all the profession wants to experience and, secondly, may adjourn the matter if they think that the other side of the equation has been disadvantaged by the failure to follow the guidelines.
WILLIAMS JA: And there may be cost implications as well.
McPHERSON JA: Yes. But his Honour thought that you weren't disadvantaged and what I'm saying is, if he was wrong and there was any disadvantage through your not having a long enough time to study the other side's submissions, you've
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certainly had a long enough time since May last year and you can put the proposition to us now.
APPLICANT: Your Honour, the District Court has a tendency to not follow procedures. In the previous case when I was in the District Court I was given three days to turn up in Court. This time I was just due for mention but when I got there the District Court Judge said I had to go on with the case.
McPHERSON JA: All right. is?
APPLICANT: Yes.
Well, that's your complaint, it
McPHERSON JA: And your complaint is based on the fact that through being forced to present the case in the District Court at short notice you didn't have enough time to either study the Crown's submissions and respond to them or to prepare your own argument?
APPLICANT: Well, your Honour, this time I have prepared a new submission. I have covered the case that the DPP had presented re Sharples.
AMBROSE J: Is this the one yo:u've just handed up, the supplementary submissions?
APPLICANT: Yes, the supplementary, yes.
AMBROSE J: But that's not yours. somebody has prepared for you.
APPLICANT: Yes.
That's something that
AMBROSE J: Are you able to - can I ask you some questions about what parts of it mean? Will you be able to answer them?
APPLICANT: I might be.
AMBROSE J: You might be?
APPLICANT: Yes.
AMBROSE J: But have you read it?
APPLICANT: Yes, your Honour, I've read it.
McPHERSON JA: But you haven't understood it all?
APPLICANT: No, your Honour, I haven't.
McPHERSON JA: All right.
APPLICANT: They're complex constitutional issues that McPHERSON JA: With respect, that's not so.
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APPLICANT: are beyond my capacity.
McPHERSON JA: With respect, that's not so. The matter -the points have been decided in this Court, I mean, the Court of Appeal, at least, twice and by single Judges of this Court on four, I think, occasions. Now, as far as we are concerned it's not complex and it'S not complex because once we have ruled on the point we are bound by those rulings and we simply follow them even if they're wrong.
APPLICANT: I present additional information as to why the judgment against Sharples was incorrect.
AMBROSE J: That's the
APPLICANT: Surely that should be -
AMBROSE J: judgment of this Court, you're talking?
You mean the judgment of this Court, the Court of Appeal?
APPLICANT: Yes.
AMBROSE J: So you're asking this Court to overrule its previous decision because it was wrong?
APPLICANT: That'sa fair enough summation.
AMBROSE J: Yes.
McPHERSON JA: What is the additional information?
APPLICANT: I have to get it - you have to take it on the papers then, your Honour, I cannot
McPHERSON JA: Well, I'm not going to read all that to find out what little bit of it refers to additional information because it doesn't come from you, it comes from someone else. What is it that you say and you say makes a difference that should lead to the overruling of the last Sharples case and, by inference, all the others?
APPLICANT: It's from paragraph 61, your Honour, deals with Sharples v. Arnison.
McPHERSON JA: Well, the first thing I see in paragraph 62 is this, "We see that ample evidence has been produced throughout the course of these proceedings".
APPLICANT: The rest of the documents, your Worship. McPHERSON JA: Which rest of the documents?
APPLICANT: Well, it's the original submission and the full
- some 20 pages of
McPHERSON JA: And your affidavit today?
APPLICANT: Yes.
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McPHERSON JA: Well, that's not new facts even
if we were prepared to admit them.AMBROSE J: As a matter of interest some of the paragraphs commence, "We say", is that the majestic plural or does -who is the "we"?
APPLICANT: Your Honour, that's the writing of the supporters who have said this.
McPHERSON JA: Yes.
AMBROSE J: It's either a group of people that are setting this appeal up, are they - is there?
McPHERSON JA: Yes.
APPLICANT: Well, I'm not in it alone, yes. pawn sitting in front of the Judges.
I'm just the
AMBROSE J: Well, somebody else is preparing all this, writing it up and you're coming along and handing it up to the Court?
APPLICANT: Because I have no resources to legal people to stand for me, someQne's got todo it.
AMBROSE J: I mean, those people who are writing this material to hand up to us, the gopher, lOOs of pages, they could all be - come along and appear, couldn't they?
APPLICANT: Well, they're not in Court. AMBROSE J: They're not in Court, no.
APPLICANT: I'm the one who's being charged with unlicensed possession of a piece of wood not them.
AMBROSE J: But the only point you're arguing was not that you were in possession of a piece of wood which was the material part of the weapon under the Act but that the Governor was improperly appointed and so there's no legislation validly be passed or administered since 1987.
APPLICANT: In my original submission I have stated various reasons why the Weapons Act itself is illegal. I also presented information as to why the Governor is illegally appointed and that the Australia Act is also illegal which would make the Weapons Act illegal anyway if the Australia Act is illegal because the DPP based their entire validity of the Australia Act on section 3 part 2. If the Australia is illegal, well, obviously the Weapons Act is also.
WILLIAMS JA: And this Court doesn't exist either.
APPLICANT: You could say that, yes.
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McPHERSON JA: Well1 I gather that, by inference at least, I'm being accused of treason under the act of settlement. This is just getting sillier and sillier, isn't it. The whole thing is just a waste of the Court's time and of yours, I might say. Do you have an employment or are you
APPLICANT: No, your Honour, I'm unemployed at the present time.
McPHERSON JA: I see. Well, that probably is what gives you the opportunity to come to us with great frequency whereas other people are gainfully employed and have their time taken up.
AMBROSE J: And other people with real business before the Court have to sit down at the back and listen to this rubbish for hours.
APPLICANT: Your Honour, if the Parliament creates illegal law should I, just because I'm unemployed, sits in the wilds of Kingaroy and do nothing?
McPHERSON JA: No, no.
APPLICANT: The Weapons Act is illegal.
McPHERSON JA: If Parliament does it illegally, yes, you come here and if you've got an interest in the matter, as you would have in this case, demonstrate to us that Parliament has acted unlawfully but it's been held, and I hope this is the last time I have to say it, by this Court, on at least two occasions and by Judges of the Court, single Judges, on at least four other occasions, I believe, that you're wrong about these things and if you want to challenge those decisions the only thing you can do is go to the High Court.
I know from something one of them told me that they are growing accu stomed, although not necessarily enjoying the experience, to having, from Queensland, more litigants in person raising estranged points before them tban from any other State and possibly, I think, they said from all States put together. Now, if you want to waste your money on things like this, you do it, but you've 9ot to go to the next step and not argue it before us.
APPLICANT: Your Honour, I had no choice. In the Magistrate's Court in Nanango I said, under section 78(b), this should have been referred to the High Court to begin with.
McPHERSON JA: No, it's got nothing to do with
APPLICANT: He refused that argument.
20
3l0l2C02
D.1 T9/IRKl3 M/T CcA14~/2oO2McPHERSON JA: 78(b) of the Judiciary Act doesn't come into it. All right. Have you got further that you want to say to us
APPLICANT: Your Honour1 78(b) says:
"Where a cause pending in a Federal Court including the High Court or a Court in a State or Territory involves, the matter arising under the constitution or involving its interpretation, it is the duty of the Court not to proceed in the cause."
So you could
McPHERSON JA: Yes, I know about that. I was in practice for a long time and frequently took points that resulted in removals under section 78(b) or its equivalent. So I don't need to know about what it does but there are two things involved in this; one is that the question in the Sharples cases has not raised the validity of Commonwealth legislation or constitution. It's raised only the validity of State legislation and the State constitution so that section 78(b) has nothing to do with it.
21
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31012002 D.1 T10/PAF23 M/T C0A146/2002
APPELLANT: I'd
raise the issue of the Validity AustraliaAct and I've raised it under various issues of the
Competition
McPHERSON JA: Which one: the Australia Act of the Commonwealth or the Australia Act of the State?
APPELLANT: Both.
McPHERSON JA: Well, those questions are covered in Sue and Hill and the High Court has told us that we are not to refer matters to them, or rather to act under section 78B, if the arguments put before us are simply unsustainable, and that being the case, I wouldn't act under section 78B because I don't believe in putting matters through to the High Court, if that's where it's goin~ to end up, for no reason at all. You can take it there because you have, if a decision is given against you here, the power to apply for special leave, and you can try to get special leave, but I won't make the High Court listen to submissions which are just legally unsustainable, and unsustainable in particular by you because you don't know what you are talking about. You frankly admit that to us.
APPELLANT: Then, your Honour, whether you possibly care to read my supplementary submission to be sure that they are unsustainable.
McPHERSON JA: No. I've read from the point where the
Sharples decision is mentioned and they're unsustainable in regard to that decision. That decision binds me unless somebody could persuade me that it should be overruled and, having looked at the submissions that you've just handed up, I am satisfied that nothing is said there that would lead me to overrule Sharples. So that's - that's the end of it. We're bound by the Sharples decision. If you don't like it, you can follow Mr Sharples to the High Court with an application for special leave to appeal against that decision. You might get it. It'd be another day away from Kingarcy, but I'll be an expensive one, I'd say. Anyway, there it is. Have you got anything further to say in support of your submissions?APPELLANT: No, your Honour.
McPHERSON JA: No. All right.
5C
APPELLANT: I stand on the papers.
McPHERSON JA: All right.
AMBROSE J: Mr Copely, do you have anything you would like to say in reply to the submissions that have been advanced so far?
MR COPLEY: No, not in relation to the oral submissions that have been made here today.
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31012002 D.l TlO/PAF23 MIT C0A146/2002
AMBROSE J: Any - well, the oral submissions today have not taken us very far. What about the written submissions?
MR CQPLEY: Well, it's on an entirely different point. may be of some interest to your Honours or it may not.
It
AMBROSE J: Yes. Well, it might be interesting, yes, very well.
MR COPLEY: In my outline I've suggested that there seems to be an extension of the practice direction which - it's probably academic now, it's since been repealed - seem to place a more onerous requirement on the Registrar to give notice of an appeal than the Act itself imposed.
AMBROSE J: Yes.
MR COPLEY: The Act only requires a person to be given 10 days' notice of the hearing, whereas the practice direction said 21 days, and it's been held in Gamble and Davidson that to the extent that the practice direction conflicts with the statute, the practice direction can't operate.
AMBROSE J: I think I was in that case.
MR COPLEY: You were.
McPHERSON JA: Yes, that has to be right.
MR COPLEY: So if it - if it's - it might fortify the Court to know that if there was any prejudice to anybody here, it was only by two days not 12 days.
AMBROSE J: Yes.
MR COPLEY: But I don't think
AMBROSE J: But, I mean, there's no doubt, is there, that it's simply a guideline and it's open to a Judge to absolve a party from any obligations or any disadvantage
MR COPLEY: Well, that's what this Court held in the Doubleday or Doubletime Pty Ltd case where there was non-compliance by an applicant. They said that there was no -no prejudice
AMBROSE J: Like all practice directions, normally Courts have the jurisdiction or a discretion to excuse non-compliance to achieve justice and particularly if non-compliance has not put a party really at fault - really at a disadvantage.
MR COPLEY: Well, that's right. So that was probably the only point that I
AMBROSE J: That was the only point you wished to make. MR COPLEY: Yes.
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AMBROSE J: Yes. All right.
MR COPLEY: Unless there1s anything further1 I have no further submissions.
APPELLANT: Your Honours, can I make a comment on this non-compliance?
McPHERSON JA: I suppose by way of reply you can speak to what was said by Mr Copley, but
90 no further, please.APPELLANT: The practice directions direct the appellant how to behave, what to put in. The main non-compliance is with the DPP who don't put any documents in on time, and the non-compliance is also with the Courts itself which in one case gave me three days to turn up in Court and the second time gave me eight, and I was told it was for mention, but when I got there it was for hearing. This has happened twice to just me alone. So what is the point of these practice directions to the appellants if the Courts and the DPP, on a regular basis, do not comply with them?
Now, in Doubleday, they were the ones who were non-compliant and they had to go to the Appeal Court to get back into the District Court. But, I mean, does every poor appellant who goes to a District C~urt not realising that no one else is compelled to comply have the you know, arethey going to be treated so well and have the extra expense of going to here because the District Court can't even abide by its own rules?
McPHERSON JA: You don't seem to realise the point I've made to you over and over again. The only complaint you can have is that you were given too short a time to prepare for the matter. There can be no other complaint. You may have been disadvantaged by that at that time. I'll assume in your favour that you were. You've had since May last year to prepare in whatever way you may like to prepare in order to present your submissions to us here in the way you're entitled to do, which is in person.
So any disadvantage you suffered by not having the guidelines or practice directions adhered to strictly in the District Court or the Magistrates Court is now completely a thing of the past. You've had every opportunity to prepare yourself to put it right.
APPELLANT: If the District Court, your Honour, had done its job properly, I wouldn't perhaps had to have appeared in this Court.
McPHERSON JA: Well, that's nothing. You're here now, so approach it on the footing that you are here and tell us what it is that you're disadvantaged by in this Court from not having a longer time in the District Court to prepare your argument.
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APPELLANT: Well, the ar9uments are prepared. written on those two submissions
They' re
McPHERSON JA: All right. Thank you. I feel in a position to deal with this matter as it stands.
TAKE IN JUDGMENT